In light of the Covid-19 pandemic, workplaces have changed dramatically. Many industries have moved to full-time remote work, with greater flexibility. This flexibility, in combination with a favorable job market and a high demand for IT professionals, has raised some complex questions for H-1B employers and employees. Understanding the H-1B visa and multiple projects is key to success.
H-1B employees are interested in working on more than one project, since the availability of fully remote work makes this more feasible than in the past. For the H-1B visa and multiple projects for the same H-1B employer, details must be carefully addressed to ensure complete compliance with all applicable immigration and employment laws. It’s critical employers understand the H-1B visa and multiple projects.
Multiple Projects with Same Employer
While an H-1B beneficiary can certainly work on more than one end client project, all projects must be fully disclosed to USCIS. This means that the LCA filed by the employer must include each end client’s name and location. If the beneficiary will work solely from home or another remote location for both projects (the more realistic scenario), the LCA will still need to mention the end clients’ names or otherwise disclose multiple projects are being completed from that remote location. An LCA requires you to disclose any “secondary entity” the employee will be placed at. This includes end clients the beneficiary works with from a remote location. If there is more than one secondary entity, the LCA must reflect that.
Because the LCA must disclose the existence of more than one end client, the itinerary of services must also disclose all projects, including the days and times the beneficiary will be working on each one. The itinerary must describe in detail how many hours the beneficiary will be working on each project so that USCIS can clearly substantiate exactly how the beneficiary will adequately complete his/her job duties for both end client projects. It is very important that the itinerary of services includes a clear breakdown so that USCIS knows what the beneficiary is working on and when the hours are completed for each project. Otherwise, an H-1B petition for multiple projects for different end clients will invite heightened scrutiny from USCIS.
The itinerary of services will need to be substantiated by strong project documentation. This includes client letters, vendor letters, master service agreements, and statements of work. While the requirements for an itinerary of service and client documentation have been relaxed in the wake of the ITServe lawsuit, these documents remain necessary in the multiple project context due to the complexities involved. Without this documentation, USCIS will not be able to substantiate the work to be performed in order to approve the petition. As such, if you intend to file for multiple projects, you should be prepared to submit more documentation than may ordinarily be required, including a very detailed itinerary of services, client/vendor letters, and relevant contractual agreements.
Importantly, if any of the vendor or client contracts include an exclusivity clause (or other contractual language indicating the H-1B employee cannot work on any other projects while engaged with that client), then the H-1B employee cannot work on two projects. It is very important that you carefully read your contracts to ensure you are not in breach if the employee is to work on two different projects.
If none of the contracts prohibit the H-1B employee from working on multiple projects, you can move forward with the H-1B filing. However, disclosure is still required to all parties (vendors, end clients, etc.). The best practice is to have all parties sign a disclosure agreement, expressly acknowledging the H-1B beneficiary is engaged on more than one project. This is important not only to protect the H-1B employer from civil liability in the event of any contractual disputes but also to make sure the parties do not find out about the employee’s engagement on multiple projects from a third party. It is a common practice for USCIS to contact the end client via phone or email during routine USICS compliance checks. If USCIS notifies one of the end clients of the existence of a second end client the beneficiary is working with, this could result in legal troubles and/or irreparably damage your relationship with your vendors and clients. As such, full disclosure is absolutely necessary if you intend to allow an H-1B beneficiary to work on multiple projects for different end clients. If any party objects, you should not move forward.
The other important consideration relates to the hours required for each project. If both end client projects require 40 hours per week, you will need to be prepared to explain how it is possible the beneficiary will work 80 hours per week – not only to USCIS but also to your vendor/clients to guarantee the services can be completed and your contractual obligations to each party can be fulfilled. We do not recommend filing an H-1B for two full-time projects. Not only will this raise questions about how the employee can realistically work that many hours, but this could also raise questions about the beneficiary’s pay structure. While a salaried employee typically works 40 hours per week and most professional employees are exempt from overtime requirements, it is not customary for a salaried employee to work double the normal hours for the same salary rate. This could have implications not only with USCIS but also in the event of a Department of Labor audit.
It is not sufficient to simply pay the H-1B employee higher than the LCA wage. If you are paying the beneficiary a higher salary to compensate for the multiple projects, that salary must be included in the LCA. Otherwise, if the DOL discovers you have filed the LCA for a lower wage than what you intend to actually pay, the employer could face civil penalties or disbarment from the H-1B program. This is an issue we have seen the DOL target in the past. When you pay the H-1B employee significantly higher than what is required by the LCA, the DOL believes the LCA was filed for a lower wage in order to avoid legal liability. In these situations, there is a presumption of bad faith. You should also keep in mind that once you file the LCA for a higher wage to account for the multiple projects if you later lower the salary, it could raise a red flag for USCIS. If pay for the H-1B employee is a higher wage to work on multiple projects, the employer should be prepared to maintain that salary level going forward.
If you do file an H-1B visa and multiple projects petition, you will need to remain diligent in notifying USCIS of any changes. If one of the projects ends, an H-1B amendment must be filed since this will be considered a material change. If the employee was working on two projects but now is only working on one, USCIS needs to know. If you filed the H-1B petition for one project and later the beneficiary starts working on another project, this again requires an H-1B amendment petition. Careful compliance is absolutely necessary for these scenarios to avoid any liability.
As always, working with an experienced immigration attorney and developing a comprehensive strategy to ensure compliance is key. If you have questions about the H-1B visa and multiple projects, the upcoming H-1B filing period, or any immigration-related issue, contact us. We are with you throughout the process..